SHAMRAO G RANE Vs. SHASHIKANT R RANE

JUDGEMENT

(1.) THIS is a petition filed by the two petitioners, who are the kartas and managers of their respective joint families consisting of themselves and their minor children, for an order that they may be authorised to alienate the shares and interests of their respective minor children, the respondents herein, in an immoveable property situate at Dammer Lane, and agreed to be sold by them to one Dattatraya Ramchandra Naik and to execute in favour of the purchaser the conveyance and all such assurances as they may be necessary, and that the sale of the property be sanctioned as being for the benefit of all the minor respondents.

(2.) THE question that arises for my consideration on this petition is whether in accordance with the practice which has hitherto obtained, I should appoint the petitioners the guardians of the property of the minor respondents and sanction the sale or merely authorise the petitioners to alienate the shares and interests of the minor respondents as asked for by the petitioners without appointing the petitioners the guardians of the property of the minor respondents. It has been contended on behalf of the petitioners that the effect of my appointing them guardians of the property of the minor respondents would be to extend the period of their minority and that is a consequence which the petitioners do not desire should follow upon any order which I would make on this petition.

(3.) THE jurisdiction which has been exercised by our Court in the matter of these petitions is the inherent or general jurisdiction apart from the Guardians and Wards Act VIII of 1890. This jurisdiction was assumed by the Court long prior to 1901 and the first reported case on the point is Jairam Luxmon. (1892) I. L. R. 16 Bom. 634 In that case Farran J. held that the High Court had the power, irrespective of the provisions of the Guardians and Wards Act (VIII of 1890), of appointing a guardian of an infant's estate and appointed the father who was the applicant the guardian of his infant sons for the purpose of raising money by the mortgage of his ancestral immoveable property on its appearing to the Court that by so appointing him guardian, better terms were likely to be procured from the mortgagee and the infants to that extent consequently benefited. THE learned Judge expressed some doubt as to the propriety of making the order prayed for and stated that he should have liked the point to have come up for a fuller argument before a proper tribunal. He, however, made the order as it was likely to benefit the whole family, and, therefore, the minors, by securing better terms than would otherwise have been obtained from a purchaser or a mortgagee. This case was followed by Starling J. in Re Jagannath Ramji (1893) I. L. R. 19 Bom. 96 where it was affirmed that the power of the Court of Chancery to appoint guardians to infants, whether such infants had property or not, is possessed by the High Court. THE learned Judge there held (p. 98) : THEre is no doubt that the Court of Chancery has always had the power of appointing guardians to infants on a proper case being made out, whether such infants have property or not,. . . though it is ordinarily not necessary for a Court to interfere in cases where there is no property. . . . This power was possessed by the Supreme Court of Bombay under its charter, and was, amongst other powers, preserved to the High Court by the 24 & 25 Vict. , c. 104, Section 9; and the Guardians and Wards Act VIII of 1890 also reserves the same power to the High Court. Consequently, I consider I have the power of appointing the petitioner guardian of the persons and estate of his two minor children, and I do so. THE question of the appointment of the karta or manager of the family as the guardian of the property of an infant member of the joint family came up for consideration again in the year 1900 When a full bench of our Court decided in In re Manilal Hurgovan (1900) I. L. R. 25 Bom. 353, S. C. 3 Bom. L. R. 411, F. B. that the High Court has, under the general jurisdiction and apart from the Guardians and Wards Act VIII of 1890, power to appoint a guardian of the property of a minor who is a member of a joint Hindu family and where the minor's property is an undivided share in the family property. THE full bench there definitely laid down that having regard to the long line of decisions of this Court, they thought, they ought not at that stage to repudiate this jurisdiction, and thus imperil the title to property which had been dealt with in reliance upon these decisions. THEy, therefore, held that this Court had power in such cases to appoint a guardian of the property of a minor. THEy, however, laid down that such power was to be exercised with the greatest caution. THEy made the appointment in that case because the person applying to be appointed the guardian was also the manager of the family to which the minor belonged and that they were not, therefore, introducing into the family any element of possible disturbance. THE appointment was made expressly on the ground that the applicant was the manager of the joint family and they added that they could hardly imagine a case in which it would be right to grant such an appointment unless the applicant were the manager. After laying down this principle they went into the question whether they ought to sanction the proposed sale of the property, and after referring to the various considerations which converged to the same conclusion, they sanctioned the sale of the property. This decision of the full bench was a reaffirmation of the principle which had been so far followed by our Court that apart from the Guardians and Wards Act VIII of 1890 this Court had inherent or general jursidiction to appoint a guardian of the property of a minor who was a member of a joint Hindu family and where the minor's property was an undivided share in the family property, a jurisdiction which was the same that the Court of Chancery had in England, which was possessed by the Supreme Court of Bombay under its Charter and which was preserved to the High Court by 24 & 25 Vic. c. 104, Section O. THE same jurisdiction has been conferred on the High Court by Clause 17 of the Letters Patent which runs as follows: And we do further ordain that the said High Court of Judicature at Bombay shall have the like power and authority with respect to the persons and estate of infants, idiots, and lunatics within the Bombay Presidency, as that which was vested in the said High Court immediately before the publication of these presents. This jurisdiction was not at all affected by the enactment of the Guardians and Wards Act VIII of 1890 which by Section 3 thereof definitely laid down that nothing in the Act shall be construed to affect, or in any way derogate from, the jurisdiction or authority of any Court of Wards, or to take away any power possessed by any High Court established in British India by Letters Patent.